Anyone that’s ever been the suspect of a police investigation, or worse, accused of a criminal offense, can tell you how intimidating it is to be interrogated by the police. If this ever happens to you, you should say absolutely nothing to the police, and if you are in custody, you should demand to see your attorney before saying anything further.

The police are trained to, and are experts in, getting confessions from suspects. There are occasionally reports of people confessing to crimes they didn’t commit, just to end the interrogation. Once the confession is made, you can be sure that the police will attempt to use it against you. But even if this happens to you, our federal Constitution provides some defenses to law enforcement’s ability to use the confession. These rights stem primarily from the 4th, 5th, 6th, and 14th Amendments of the Constitution. While an understanding of these rights is critical to your criminal defense, a good defense attorney can help you understand when one of those rights has been violated.

Fourth Amendment

The Fourth Amendment of the United States Constitution provides that the police cannot engage in unreasonable searches and seizures without a warrant. Generally speaking anything that was obtained in violation of the Fourth Amendment represents “fruit of the poisonous tree.” The expression simply means that if the police get information without obtaining a warrant when they should have obtained a warrant, then the police never should have gotten the information. Accordingly, the court will not allow the state to use it against a criminal defendant.

In the context of confessions, if a person is improperly “seized” and then confesses to a crime, the police would never have obtained the confession but for the seizure. The police generally cannot, therefore, introduce a confession that is fruit of the poisonous tree.

This is not an absolute, however, because, as with most things in the law, there are a few exceptions to the rule. For example, a warrantless seizure cannot be “unreasonable.” The United States Supreme Court has identified a number of situations that constitute reasonable seizures and therefore do not require a warrant. To name just a few examples, if a police officer has reasonable grounds to believe that you have committed a felony, he can arrest you without having to first obtain a warrant. Similarly, if you commit a misdemeanor in front of a police officer, he can arrest you without a warrant. If you then confessed, the Fourth Amendment would not be violated.

Fifth Amendment

The Fifth Amendment provides that no person, “shall be compelled to be a witness against himself.” The Supreme Court has interpreted this to mean that if you were coerced into making an incriminating statement, then the police violated the Constitution.

The key Supreme Court case regarding the Fifth Amendment and confessions is Miranda v. Arizona. That case imposes on the police a duty to advise suspects of a list of rights, that most of us have seen enough cop shows to be able to recite verbatim. These include: (1) the right to remain silent, (2) a statement alerting the suspect that anything he says can be used against him, (3) notification that the suspect has the right to the presence of an attorney, and (4) a notification that if you cannot afford an attorney the state must provide you with one. Failure to properly Mirandize someone creates a presumption that the police coerced you into making any statements that occurred during your interrogation.

But, as with the Fourth Amendment, this requirement is not absolute. There are two important circumstances that must occur in order to trigger the the need for Miranda. First you must be in custody, which is interpreted to mean that a reasonable person in your situation would not feel free to leave. Second you must be subjected to interrogation, which means that the police must do or say something that is likely to induce you to make an incriminating statement.

If, after a suspect receives his Miranda warnings, he or she proceeds to speak with the police, a confession will generally be admissible. If the suspect demands an attorney then the police have to stop the interrogation. But the demand must truly be a demand. It cannot be a question, such as, “I wonder if I need a lawyer,” and it cannot be a wishy-washy statement, such as, “maybe I would like to see an attorney.” You need to say, unequivocally, that you want to speak with your attorney.

Finally, even if, the court finds that the police violated Miranda, but the confession was otherwise voluntary, the prosecutor may still be able to get your confession in front of the jury. Although they can’t do it during the state’s case against you, if you decide to take the stand in your defense, the prosecutor is free to use your confession for purposes of impeachment. That means that he or she can ask you about it to prove that you aren’t very credible. But once it’s in front of the jury, they will know that you said it, and, as a practical matter, likely consider it in whatever light they like, including as evidence of your perceived guilt.

Sixth Amendment

The Sixth Amendment provides that a criminal defendant has a right to the assistance of counsel. That statement has been interpreted to mean that defendants are entitled to attorneys at any time after formal charges have been filed.

Miranda applies to the Sixth Amendment right to counsel. Thus if police fail to Mirandize a defendant, file charges, and then proceed to question the defendant, then the confession will likely be suppressed. Unless you expressly waive your right to counsel and proceed to speak with police, the state cannot use a confession against you that is made outside of the presence of defense counsel.

Importantly, this right is offense-specific. In other words, if police arrest you for one thing, and then begin to question you about an unrelated crime, they don’t necessarily have to provide you with counsel to comply with the Sixth Amendment.

Fourteenth Amendment

Finally, the Due Process Clause of the Fourteenth Amendment prevents admission of confessions that are involuntary.

To determine whether or not a confession is voluntary, the court must look at the totality of the circumstances. This means that the court will review each confession on an individual basis and consider such things as age, education, mental and physical condition, how long the interrogation took, what the environment was like, etc. As an extreme example, if the police began beating a suspect until he or she confessed, that confession would be a violation of the Fourteenth Amendment.

The moral of the story is, that if you believe you are the suspect of a crime, you should not speak with the police. If you do, the things you say may later be used against you. However, even if you do make a statement to the police, there is a chance that the Constitution will protect you from the admission of a statement.

Federal prosecutors went to the grand jury regarding alleged bribery by Avon in China.

Avon was formed in 1886 and sells various women’s products. The company works on a multi-level marketing model, meaning that individual sales representatives receive compensation for the profits of other sales representatives that they recruit. Avon is publicly traded and is available on the New York Stock Exchange. According to the company’s financial reports, the majority of its business is in international markets.

In 2005, Avon produced an internal audit report indicating that Avon employees might be bribing Chinese officials. Perhaps coincidentally, in 2006, Avon became the first Western business that was authorized to sell door-to-door in China.

Later, in 2008, a whistleblower sent a letter to the Avon’s CEO, Andrea Jung. The letter prompted Avon to begin a massive internal investigation into the matter and the possibility of bribery in other countries. Avon has expended tens of millions of dollars into the investigation.

Prosecutors in the United States began an investigation last year and just went to a grand jury in New York with bribery charges. The state’s claims arise from the Foreign Corrupt Practices Act, which makes it illegal for a U.S. citizen or business to bribe a foreign official to receive or retain business. Concerns by prosecutors revolved around Avon’s reactions to the 2005 memo. The fact that no one did anything until several years later raised a number of red flags. Prosecutors were concerned that the report may have been ignored or covered up after it was produced.

The Mexican military just made the largest methamphetamine seizure ever.

After receiving a tip from several anonymous informants, the military searched a ranch in Tlajomulco de Zuniga, a town in Jalisco, located near the state’s capital. Once inside, soldiers discovered approximately 15 tons of methamphetamine in pure powder form.

No one was at the ranch at the time of the seizure. Consequently, no arrests were made. Authorities believed, however, that around 15 people had been working at the ranch.

The seizure is valued at over $4 billion in the United States and represented approximately 13 million doses.

It’s not entirely clear which drug traffickers are responsible for the production of the seized methamphetamine. Some authorities believe it was produced by the Sinaloa Cartel, Mexico’s largest drug trafficking organization. The size of the seizure leads others to wonder whether or not it was produced by an alliance of different cartels.

Although many are excited to inflict such a major attack on the drug trade, experts in the United States and the United Nations expressed concern that it’s an indication of the increased scale of Mexican drug trafficking. Despite increasing efforts by both U.S. and Mexican governments, the methamphetamine supply in the U.S. has been steadily rising since 2007.

Drug Enforcement Administration spokesman, Rusty Payne, was quoted as saying, “when we see one lab with the capability to produce such a mass tonnage of meth, it begs a question: What else is out there?”

A number of high profile clients in Guatemala have begun to prevent extradition to the United States through the use of a legal device called a “writ of amparo.”

A writ of amparo, which finds its origins in the Mexican legal system, allows a defendant to challenge an action as being violative of his or her fundamental constitutional rights. “Amparo” is the Spanish word for “protection.” The writ of amparo is similar to what’s called a “habeas corpus” action in the United States.

The lawyers of a number of Guatemalans accused of being involved in high-level organized crime have begun to use writs of amparo as a means of preventing extradition of their clients to the United States.

The basis of the amparo claims vary. Often attorneys simply contest the constitutionality of extradition. Sometimes there are challenges based on judicial conflicts of interest. One claim involved a challenge that the extradition paperwork was too vague because it referenced the “United States,” which could allegedly have been confused with the “United States of Mexico.”

The effect of the varied claims is that U.S. law enforcement have had to wait for resolution of the issues in Guatemalan courts. The defendants simply continue to re-file amparo claims to create delay and otherwise frustrate U.S. efforts to extradite.

The insanity defense to criminal prosecutions, has a long and interesting history. American courts, scholars, and legislators have developed a number of different tests to determine whether or not someone should be acquitted as a result of insanity.

Interestingly, someone can be considered clinically “insane” and not be legally “insane,” or vice versa. To determine whether or not someone is legally insane requires application of the relevant test.

In the United States, the most prominent tests that have been developed include the M’Naghten Test, the Irresistible Impulse Test, the Model Penal Code Test, and the Durham Test. Each state has different requirements, but generally follow one of these major approaches. Some states have completely abolished insanity as a defense. The federal government has essentially codified the M’Naghten Test. If you think that one of these tests is applicable, you should speak with your attorney.

M’Naghten Test

The M’Naghten Test derives from English common law and was adopted in the United States. The original case took place in 1843 when Daniel M’Naghten murdered Robert Peel by shooting him in the back. M’Naghten was attempting to kill English Prime Minister, Edward Drummond. Peel was Drummond’s secretary. M’Naghten’s defense counsel asserted that he was a paranoid schizophrenic.

In reviewing the case, the English House of Lords developed a test requiring that in order for someone to be acquitted by reason of insanity, the defendant must show that he was suffering from:

• A disease of the mind,
• That caused a defect of reason, and
• At the time of the crime the defendant lacked the ability to know the wrongfulness of his actions or to understand the nature and quality of his actions.

The first requirement, that the defendant have a “disease of the mind,” has been interpreted to apply to situations beyond just traditional psychiatric conditions. For example, some courts have held that epileptic or diabetic episodes constitute such a disease. Essentially, the phrase includes anything that can cause a person’s mind to stop working properly.

The core of the test, however, revolves around the defendant’s ability to understand that his actions were wrongful or that he didn’t understand what he was doing. Put another way, the question is whether or not the defendant understood the difference between right and wrong when he committed the crime.

Many scholars have criticized the M’Naghten test for a range of reasons. One of the most prominent objections is that there are situations where a defendant did understand the nature of his actions or did understand that what he was doing was wrong, but was nonetheless unable to control his behavior as a result of a mental illness. Such persons would not generally be acquitted under the M’Naghten analysis even though they may be legitimately suffering from a mental illness that caused the person to carry out a crime.

Irresistible Impulse Test

The irresistible impulse test looks at whether or not the defendant, as a result of mental illness, was:

• Unable to control his actions OR
• To conform his conduct to the law.

In other words, the test tries to determine whether or not the disease itself compelled the defendant to commit an illegal act. This effectively deals with the major criticism of the M’Naghten Test, because it addresses situations where a defendant may have known that he was committing a wrong, but nonetheless could not control his behavior. However, when looking at the Irresistible Impulse Test in its purest form, there is no question of whether or not the defendant appreciated the wrongfulness of his conduct.

Many states today have adopted insanity defenses that merge both Irresistible Impulse Test with the M’Naghten Test.

Model Penal Code Test (also known as the American Law Institute Test)

The American Law Institute (ALI) is comprised of a group of law professors, judges, and attorneys, that, amongst other things draft model laws. These model laws are not law in and of themselves, but are presented to the states for adoption. If a particular state adopts the law, then it becomes binding on its citizens.

In 1962, the ALI put together a model law addressing when a defendant can utilize the insanity defense. It required that the defendant, as a result of a mental disease, lacked substantial capacity to:

• Appreciate the criminality of his conduct OR
• To conform his conduct to the requirements of the law.

Although the language is slightly different, this test essentially represents a merger of the M’Naghten and the Irresistible Impulse Tests. Thus under such a rule, if someone either doesn’t appreciate the wrongfulness or nature of his conduct OR does appreciate that his behavior is wrong, but is still unable to stop himself from committing a crime, then he can be acquitted.

Importantly, under the ALI Test, the burden was on the government to prove that the defendant was not insane.

After its development, the majority of both the states and the federal circuit courts adopted the ALI Test. However, outcry against the John Hinckley Jr. trial caused many to backlash against the ALI standard. Hinckley attempted to assassinate President Ronald Reagan. He later claimed that he was trying to impress actress, Jodie Foster. At his trial, he was found not guilty by reason of insanity. The court applied the ALI Test. Public outcry resulted in a number of states altering their insanity laws. Some of them abolished the insanity defense in its entirety.

At the federal level, Congress enacted a stricter version of the M’Naghten test, which is still in effect today. It was codified at 18 U.S.C. § 17. One major difference ion the new law is that the federal statute requires that the mental disease from which the defendant is suffering be “severe.” It also places the burden to prove the defense back on the defendant.

Durham Test

Finally, the Durham Test, attempted to simplify both the M’Naghten and Irresistible Impulse tests by looking at simply whether the criminal conduct was:

• The product of a mental disease or defect.

The test derives its name from the 1954 District of Columbia case, Durham v. United States. The District of Columbia used this test from 1954-1972. In 1972 it was replaced with the ALI Test.

The Durham Test has been heavily criticized as vague and difficult to apply. For that reason most states expressly rejected it. Today only New Hampshire continues to use it.

Toronto-Dominion Bank (TD), the second largest Canadian bank, was just ordered by a Florida court to pay $67 million for its involvement in a $1.2 billion Ponzi scheme.

The scheme began with a prominent Florida attorney that sold investors interests in fake legal settlements. The attorney bribed politicians, judges, and police officers, and funneled illegally obtained funds into political campaigns. He also paid $50,000 to the vice president of TD to look the other way, while the bank was used to manage the money acquired from victims.

A number of TD employees were involved in the scheme, allowing investors to go into a local branch to pay money or check on balances. The attorney also set up a TD website to provide clients with false account balances.

The attorney, who is now actively helping prosecutors, was sentenced to 50 years in prison. One of the injured investors, Coquina Investments, brought suit to recover losses. The court awarded Coquina $32 million in compensatory damages and $35 million in punitive damages, for a total of $67 million.

Other victims are expected to file suit against TD as a result of its involvement in the scheme. TD reported that it is allocating $255 million to its litigation reserve.

Plagued by  insurance fraud, Florida’s lawmakers are eager to make a change. Two bills designed to combat such fraud are currently pending in the legislature.

Florida follows a no-fault insurance system that requires drivers to carry at least $10,000 in auto insurance. In the event of an accident, insurance companies must pay medical bills regardless of fault. But since enacting the law, Florida has faced a surge in insurance fraud. As a result, Florida’s insurance rates are extremely high. Currently, Tampa and Miami are amongst the top 10 most expensive cities for auto insurance.

The most common scam involves medical practitioners that recruit people to stage accidents. After the accident, the “victims” go straight to clinics. Doctors make false claims, thus forcing the insurance companies to pay out. Once payment is received, the doctors split the insurance money with the false victims.

The governor and lawmakers are eager to amend the law. There are presently two pending bills in Florida’s legislature. One was initiated in the House and one in the Senate. The House version would require accident victims to go directly to an emergency room within 72 hours of the accident. It would also cap attorney fees and require doctors to be questioned under oath regarding their provision of health care. The Senate version would require police to use long forms when reporting accidents and would increase clinic regulation. It would also create an anti-fraud task force.

Efploia Shipping and Aquarosa Shipping pled guilty to four charges brought by the Justice Department related to illegal waste dumping in the ocean.

Efploia, a Grecian corporation managed a ship named, M/V Aquarosa. Aquarosa Shipping, a Denmark corporation, owned the vessel.

In February of 2011, one of the ship’s engineers approached the Coast Guard with a series of approximately 300 photos he had taken using his cell phone. The pictures depicted the ship dumping sludge and oil waste overboard using a pipe that had been rigged to override pollution prevention equipment. The Aquarosa was also dumping garbage bags full of oil-soaked rags.

Further investigation revealed that the ship had been engaged in illegal dumping since its maiden voyage in 2010. Both companies admitted to falsification of records regarding waste discharge in the ocean.

Efploia Shipping and Aquarosa Shipping each pled guilty to obstruction of justice, making material false statements, failing to maintain an accurate oil record book, and knowingly failing to maintain an accurate garbage record book.

The chief engineer of the ship also pled guilty. He was sentenced to three months in prison. The two companies were ordered to pay $1.2 million in fees. A large percentage of that money will be paid to the National Fish and Wildlife Foundation.

The engineer that reported the dumping will also likely receive an award for turning the company in. The Justice Department has already requested that the court award him money from the fines paid by the company.

On January 11, 2012, in Perry v. New Hampshire, the United States Supreme Court issued an opinion declaring that even if a criminal suspect is identified using unreliable procedures, so long as those procedures were not created by the police, courts are not required to suppress the evidence.

Factual Background

The case began when police received a call regarding someone trying to break into cars. An officer arrived on the scene and encountered the defendant, Barrion Perry. Perry was carrying two car stereo amplifiers. He told the officer that he had found them on the ground.

One of the nearby residents, while speaking with a different officer, indicated that she had seen someone break into a car. When asked for a description of the man, the resident pointed out her kitchen window at Perry. At that time, Perry was standing next to the first officer, being questioned. Perry was then arrested.

Procedural Background

Perry was charged with theft by unauthorized taking and criminal mischief. Before his case went to trial, he moved to suppress the resident’s identification of him through the kitchen window. His argument was that because the neighbor pointed him out when he was being questioned by the police, he appeared to be a suspect and it was virtually guaranteed that he would be identified as the person that had committed the crime.

The trial court denied the motion to suppress. After a trial, the jury found Perry guilty of theft, but not criminal mischief.

Perry appealed his case to the New Hampshire Supreme Court, which affirmed the lower court’s denial of the motion to suppress.

The United States Supreme Court then agreed to hear the case.

Legal Backdrop

Prior to this case, the United States Supreme Court had held, in a line of cases beginning with Neil v. Biggers and Manson v. Brathwaite, that due process requires suppression of criminal identifications that occurred during improper identifications.

The test required that the court first ask whether or not the police had used an identification procedure that was unnecessarily suggestive. And if they had, the court then had to ask whether or not the impropriety of the identification so tainted the result that it should be inadmissible. If so, the identification evidence could not be presented to the jury.

The Court’s Analysis

The novel question in this case was whether or not the court should have been required to run through the above analysis because it wasn’t really the police that created the identification procedure, it was the neighbor who spontaneously pointed out the defendant.

In an 8-1 decision, the Supreme Court found that the rule regarding suppression of improper identifications should only apply to police conduct, not to conduct of private citizens. The court expressed concern that stretching the rule to apply to private actors would take away the jury’s fact-finding function and turn the judge into the fact-finder.

Further, explained the court, there are other protections to prevent against improper identification evidence. Criminal defendants can cross-examine witnesses, use the rules of evidence to exclude unfairly prejudicial evidence, or call expert witnesses to explain why the identification was tainted.

Conclusion

Ultimately, the court ruled against Perry and affirmed his conviction.

Dissent

Justice Sotomayor was the only dissenter. She expressed concerns that there are significant problems with eyewitness identifications and that those problems are what gave rise to the rule in the first place. By taking away constitutional protections when an identification was created by a private actor, we still run the risk of wrongly imprisoning people. For that reason, she argues, we should not restrict application of the rule to police-constructed identifications.

During his State of the Union, President Obama announced that he will be forming a new financial crimes unit in the Justice Department. The new unit will be tasked with investigating criminal activity related to the issuance of risky mortgages that led to the market collapse. In particular the unit will look at large-scale fraud in financial institutions. Obama said that the unit will, “hold accountable those who helped bring about the last financial crisis as well as those who would attempt to take advantage of the efforts of economic recovery.”

The new group will work under the Financial Fraud Enforcement Task Force (Task Force). The Task Force was established by Obama in November 2009 to investigate crimes that led to the market collapse. The major difference is that the Task Force’s focus is much broader than the new financial crimes unit. For example, the Task Force looks into Ponzi schemes, scams against the elderly, procurement fraud, predatory lending, and a number of other crimes. The new unit will have a much more narrow focus, in that it will investigate only origination fraud.

During his speech, Obama also asked Congress to increase penalties for fraud, claiming that large corporations have nothing to fear for violating the law. He is concerned that large businesses will simply engage in illegal activities, and write-off the occasional penalty as a business expense, thereby still profiting overall.

Reactions to the new unit have been mixed. Some feel that the Task Force has not done what it was supposed to and fail to see why creating a new unit within the Task Force will make any difference. Others are are happy that someone will finally be targeting origination fraud and feel that the Task Force’s focus was too broad to be able to effectively deal with all of the different types of crime it was designed to combat.